The Paducah Sun

February 19, 2000

Ruling cited as proof that laws need to protect DOE workers

By Joe Walker
Sun Business Editor

The need for laws to compensate injured nuclear employees at the Paducah Gaseous Diffusion Plant and elsewhere is underscored by a federal court ruling in Tennessee that limits the federal government's liability for exposing workers to beryllium, an atomic workers' union lawyer says.

"It limits people's ability to sue the government, and what beryllium compensation legislation does is to provide a remedy where people may not have one legally in certain cases," said Richard Miller, Washington-based policy analyst for the Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE). The union represents more than 800 workers at Paducah and thousands of employees at other plants.

Miller's comments followed a decision Wednesday by U.S. District Judge James Jarvis affecting a dozen lawsuits filed against the United States by 15 former Oak Ridge weapons plant workers who claim they now suffer from chronic breathing problems. The workers alleged they became ill from exposure to beryllium at the Department of Energy's Y-12 weapons plant and the now-closed K-25 uranium enrichment plant in Oak Ridge.

Jarvis dismissed seven lawsuits entirely and dismissed the United States as a defendant in five others, although those lawsuits remain intact against at least 12 companies.

Whether the ruling will have further-reaching effect is unclear because in November the Clinton administration announced plans to compensate all beryllium workers in medical costs, lost wages and rehabilitation.

The lawsuits, filed between 1994 and '99, contended that DOE and its contractors knew that exposure to beryllium was dangerous but failed to adequately protect workers. Exposure to beryllium, a metal used in the production of nuclear weapons, can cause chronic and debilitating breathing problems that can be fatal if not treated.

Jarvis ruled the government was shielded from such injury claims because of a ''discretionary function exception.'' That protection applies to ''policy decisions'' where the government has to make a judgment call.

Although the Oak Ridge case was a setback for workers, the judge and the Justice Department attorneys representing the government noted that compensatory legislation was planned. "You have a judge saying basically that he has empathy for the workers," Miller said.

Under the DOE-supported bill, workers would receive wage replacement and health insurance or a $100,000 lump-sum payment if they have beryllium disease and worked at a DOE defense nuclear facility or metals manufacturer. The bill does not require workers to prove causation but does bar them from suing DOE or its contractors if they receive compensation.

Another administration bill would provide similar benefits to Paducah plant workers with specific cancers associated with radiation exposure. It also excludes compensated workers from filing claims against the government and contractors, except for state workers' compensation actions.

Although the beryllium bill does not specifically include Paducah workers, they would be eligible if they have beryllium disease because it is "a fingerprint" from beryllium exposure, Miller said.

The pending legislation has greater importance now that DOE has admitted the possible use of beryllium at Paducah during the Cold War. DOE says machine shop workers at the plant may have used beryllium to coat nuclear bombs for defense plants.

But Miller said the administration's bills are too narrow, and he is working with various members of Congress to draft broader legislation covering workers at more plants.

"Most members on Capitol Hill want to make sure that if you take the lump sum you also get health insurance," Miller said of the beryllium bill. "Many think that ($100,000) is not adequate compensation for destroying somebody's lungs."

He said lawmakers want a bill that is fairer and provides for "one-stop" compensation, rather than forcing sick people to visit various governmental offices to get help.

"It's clear that no bill is going to pass Congress that limits compensation to one plant at the expense of other plants where the hazards are equal or greater," Miller said.

The Oak Ridge decision apparently has little bearing on two federal lawsuits filed last year against contractors who once ran the Paducah plant for the federal government. Both suits focus on the contractors - alleging they covertly poisoned workers and the public - and exclude the Energy Department.

One of the suits is a false-claims action alleging contractors defrauded the government by accepting millions of dollars in performance bonuses. The other seeks to be a class action on behalf of as many as 10,000 workers and families.

Bill McMurry, a Louisville lawyer who filed the class-action suit, said that while he had not seen the Oak Ridge opinion, "I can tell you that there is no implication to our worker class action. We did not sue the U.S. government nor would it have been necessary to recover compensatory damages."

McMurry said the federal government is "obligated" to pay any judgment against contractors in cases, such as the class-action suit, that arise from a "nuclear incident or occurrence." Law requires the government to indemnify contractors for any compensatory, and in certain circumstances, punitive damage judgments against them.

The Associated Press contributed to this report.